Tuesday round-up

Posted Tue, June 14th, 2011 8:56 am by Nabiha Syed

As the Term winds down, the Court remains busy: yesterday it issued decisions in four cases and granted certiorari in four more.

Yesterday's opinion in Nevada Commission on Ethics v. Carriganattracted the most coverage. In that case, the Court upheld the Nevada Ethics in Government Law, which bars legislators from voting on or advocating for a proposal when they have a conflict of interest; in so doing, as Lyle Denniston explains for this blog, the Court "reaffirm[ed] more than two centuries of law." Bill Mears of CNN points out that the case "hits close to home" for the Court, given recent national debate over Supreme Court recusals; Rick Hasen of Election Law Blog reviews the opinion in detail and concludes that "the most significant aspect of the case" is what it says about judicial recusal rules. As the Wall Street Journal notes, this decision "shows that the court's conservative majority draws distinctions between electioneering, where it has viewed campaign finance regulations as inhibiting robust debate, and official acts." And at Dorf on Law focuses on the campaign finance aspect, finding a "very interesting disagreement lurking beneath the surface" despite "the unanimity of result in the Court's decision"; he posits that the Court's four liberal Justices may have acquiesced in "Scalia's stingier interpretation of speech" in the hope that the case will "become[] a useful precedent for upholding a particular form of campaign finance restriction: The requirement of a legislator’s recusal when the interests of major political backers are at stake." The Associated Press (via Google News), Washington Post, Constitutional Law Prof Blog, Los Angeles Times, USA Today, New York Times, and NPR all offer more coverage.

In Janus Capital Group v. First Derivative Traders, previously one of the oldest outstanding cases without a decision, the Court held that a mutual fund investment adviser may not be sued for securities fraud regarding false statements made in the mutual fund prospectus because the adviser did not itself "make" the statements, as required securities laws. Daniel Fisher of the Forbes Full Disclosure blog notes that the case marks the end of the "plaintiffs' winning streak in securities cases before the U.S. Supreme Court"; however, the editorial board of the Wall Street Journal points out that despite "usual howls that the ruling cuts off a major avenue for accountability in securities fraud, the SEC still has authority to go after secondary actors." At Bloomberg, Greg Stohr offers a detailed explanation of the issues in the case, noting that the Court split along ideological lines; Courthouse News Service, the New York Times, and Reuters (via the Chicago Tribune) also provide background.

Also notable was the decision in Flores-Villar v. United States, in which an equally divided Court (with Justice Kagan recused) affirmed the decision of the Ninth Circuit, which in turn rejected a challenge to the constitutionality of a federal law that treats children of unmarried U.S. citizen fathers differently from the children of unmarried U.S. citizen mothers for purposes of obtaining citizenship. The Associated Press (via the Washington Post), Christian Science Monitor, and CNN all have coverage and note that the case did not set a national precedent, while at ACSblog, Sandra Park predicts that because "this nationality law continues to treat fathers and mothers differently, [these] questions will likely be raised again, to be heard next time by all nine justices."

Finally, the Court also issued its decision in United States v. Jicarilla Apache Nation, holding that the fiduciary exception to attorney-client privilege does not extend to the trust relationship between Native American tribes and the United States. At the Atlantic, Andrew Cohen argues that the decision "undercuts the entire statutory and administrative framework that bears the government's relationship with the Apache Nation and other Indian tribes." JURIST, Courthouse News Service, and UPI offer more coverage.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.